the time of filing the notice of appeal to file his statement of reasons. As he filed such statement of reasons on January 7, it also was timely filed. With respect to the substantive questions, the record shows the following: On October 27, 1967, Casey filed an application with the District Manager, Bureau of Land Management, Battle Mountain, Nevada, in which he requested a license for 399 animal unit months (AUMs) of forage on an active use basis and 5,339 AUMs on a nonuse basis, for a total of 5,738 AUMs. By decision of January 22, 1968, the District Manager held that the forage production of Casey's base property was sufficient to issue a license for only 4,844 AUMs, or a reduction of 894 AUMs. Casey appealed the decision, contending that the District Manager was in error as he failed to take any action on a pending application filed by Casey to transfer a portion of his base property qualifications to other property owned by him, called the Goss Ranch land, that would provide sufficient forage to justify the issuance of a license for all of the AUMS requested. A hearing on the appeal was held by the Judge on December 11, 1968. Casey, the District Manager and G. N. and M. Sharp all appeared and were represented by counsel. The Judge concluded that if the productivity of base property declines, grazing privileges are lost under 43 CFR 4115.2-1 (e) (9) (i) only after the expiration of two consecutive application years and then only if nonuse has not been granted for those privileges that cannot be utilized due to the insufficient production of the base property. Accordingly, he held that as Casey was issued licenses during 1966 and 1967 granting nonuse for those privileges that could not properly be utilized due to the lack of productivity on his base property, and as two consecutive application years did not intervene between the time of the District Manager's letter of April 15, 1966, and January 17, 1968, the date of filing the transfer application, Casey had not lost any grazing privileges under the regulation at the time the transfer application was filed. He, therefore, remanded the case for appropriate action on the transfer application. The Bureau and G. N. and M. Sharp appealed to the Director, Bureau of Land Management. The Office of Appeals and Hearings affirmed the Judge and remanded the case to the District Manager for consideration of the transfer application on its merits. In affirming, The Bureau decision noted: In the case of Mrs. C. B. Stark, Nevada 6-62-2 (January 28, 1964), the Bureau stated, "It is hereby construed that the two consecutive years' referred to*** is interpreted to mean two consecutive application years and not two calendar years***." In Jack G. Taylor, A-31014 (June 25, 1969), in discussing the regulation, 43 CFR 4115.2-1 (e) (9), the Department held that the "intent of the regulation is to require an applicant to assert his demand timely so that it can January 30, 1973 be adjudicated and to bar one who does not do so within a period of 2 years from thereafter pressing his claim." The Department also stated in Anawalt Ranch & Cattle Co., et al., 70 I.D. 6 (1963), that "the decision establishing base qualifications at a limit commensurate with the extent to which it was covered by the appellant's applications for 2 years immediately preceding was correct ***." (Italics supplied by the Bureau.) As to the interpretation of "two consecutive years," we affirm and adopt the rationale and finding of the decision of The Bureau. We agree with appellants that the sale by Casey of the Goss Ranch land reduces his base property commensurability. With respect to the Goss Ranch land, which has now been sold by Casey, while there seems to be no precedent on this issue, we agree with Casey that the transfer application, if it were approved on its merits, would be effective as of January 17, 1968, the date his transfer application was filed, and while he owned the land. 43 CFR 4115.2-2 (b) (3). Therefore, the grazing privileges requested to be transferred would then be attached to that land, and the sale of the land by him at a later date would not affect the transfer. Under the doctrine of "relation back" as stated above, it could possibly have an ef 2 This regulation provides in applicable part: (3) *** Upon approval of the application by the District Manager after reference to the advisory board, the transfer shall be effective as of the date of filing of the application, and the base property from which the transfer is made will thereupon lose its qualifications to the extent indicated in the transfer. (Italics supplied.) fect on the rights of the purchasers of the base property to the grazing privileges attached thereto under 43 CFR 4115.2-2. The grantees named in the deed are George A. Manley and Linda M. Manley. If the latter have expressed an interest in obtaining any grazing privileges to which the base land is entitled, the transfer application should be considered on its merits. Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1 (1972), the decision below is affirmed as herein modified, and the case record is returned to the Bureau of Land Management for any action that be deemed necessary may advisable in accordance with this decision. or 110(b) of the Federal Coal Mine Health and Safety Act of 1969. Reversed. Federal Coal Mine Health and Safety Act of 1969: Entitlement of Miners: Discharge: Burden of Proof Proof by a discharged miner that he has notified only a member of the mine safety committee of an alleged violation or danger without showing a notice or instigation thereof to the Secretary or his authorized representative fails to sustain the burden of proving a violation of section 110(b) (1) (A) of the Act. Federal Coal Mine Health and Safety Act of 1969: Administrative Procedure: Generally The Board may be persuaded by the findings of fact in an arbitration proceeding where they are made a part of the record, but the Board is not bound or controlled thereby. APPEARANCES: R. G. Kelly, Esquire, Charles Q. Gage, Esquire, of Jackson, Kelly, Holt, & O'Farrell, attorneys for Kentucky Carbon Corporation; Joseph W. Justice, Esquire, of Burke & Justice, attorneys for Franklin Phillips; and Guy Farmer, Esquire, attorney for Bituminous Coal Operators' Association, amicus curiae. OPINION BY THE BOARD INTERIOR BOARD OF MINE OPERATIONS APPEALS Procedural Background On May 28, 1971, Franklin 1971, Franklin Phillips (applicant) filed a Petition for Reinstatement to Employment as a Result of Discriminatory Discharge under section 110 (b) (1) (A) of the Federal Coal Mine Health and Safety Act of 1969 (the Act)1 with the Office of Hearings and Appeals, Arlington, Virginia. On June 22, 1971, Kentucky Carbon Corporation (Kentucky Carbon) filed a Motion to Dismiss and Answer, and on October 15, 1971, filed a Motion for Summary Decision. The Administrative Law Judge, on October 15, 1971, ordered Phillips to amend or to show cause why his application should not be dismissed, to which Phillips responded on November 12, 1971. On November 18, 1971, Kentucky Carbon filed its Statement in Response to Applicant-Petitioner's Response to Order to Show Cause. The Judge denied Kentucky Carbon's Motion to Dismiss and Motion for Summary Decision on November 22, 1971. A hearing was held December 10, 1971, and a decision was issued in favor of Phillips on June 8, 1972. Kentucky Carbon filed a Notice of Appeal with this Board on June 28, 1972, and Bituminous Coal Operators' Association (BCOA) filed a petition on July 18, 1972, to participate as amicus curiae, which was granted by the Board. Timely briefs were filed by the parties, and oral argument before the Board was held August 24, 1972. Factual Background Franklin Phillips was a regular employee of Kentucky Carbon Corporation at its Ken-Car No. 1 Mine at Phelps, Kentucky. On April 28, 1 P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. §§ 801-960 (1970). January 30, 1973 1971, he reported for work on the second shift (4 p.m.) to perform duties as a shuttle car operator 2 in the No. 1 section. Phillips had hauled several loads of coal when it became apparent to him that water sprays on the loading machine were operating inadequately. The loading machine operator, Ermil Justice, also recognized that a problem existed and requested Phillips to get some tools with which the malfunctioning water sprays could be disassembled. The loading machine, which transferred coal from the working faces to the shuttle cars, was provided with water sprays to retard coal dust from "boiling up" as the coal hit the bottom of the shuttle cars (Tr. 13).3 Ermil Justice and Phillips removed several water spray heads and were in the process of cleaning them when the section foreman, H. E. Edwards, appeared on the scene. Phillips and the foreman exchanged words relating to the temporary work stoppage and tempers grew short. Edwards ended the conversation by firing Phillips, who then left the mine. There is some evidence in the record that Edwards had at times displayed to some of the miners a short temper and an intolerance of safety complaints related to the mine's op 2 Shuttle Car Operator: "In bituminous coal mining, one who drives an electrically powered truck (shuttle car) in a coal mine to transport coal from the excavation point to the conveyor belt." A Dictionary of Mining, Mineral and Related Terms at 1007 (P. Thrush ed. 1968). References to pages of the transcript of hearing will be abbreviated as "(Tr. ———)” in this decision. References to exhibits which were accepted as part of the record will be noted as "(Ex. -)." eration. It also appears that Phillips had made various complaints to Edwards and to a union mine safety committee member prior to his discharge. Phillips did not seek any immediate redress of the incident and two days afterward was given a discharge slip "For interfering with the operation of the mine and abridging the rights of management. Also refusing to obey a direct and proper order" (Ex. 1). On May 6, 1971, the United Mine Workers of America (UMWA), on behalf of Phillips, filed a grievance under the applicable arbitration. provisions of the National Bituminous Coal Wage Agreement of 1968, alleging that Phillips had been unjustly discharged. The final decision by the umpire on this grievance, dated June 21, 1971, was in favor of management (Kentucky Carbon), and was based in part on Phillips' own admission (Ex. 4(a), p. 65): "In this case the grievant (Franklin Phillips) admits that he refused to work and obey a direct order of management to perform his duties ***." (Ex. 4(c), p. 11.) Contentions of the Parties Kentucky Carbon contends that Phillips failed to prove by a preponderance of the evidence that he was discharged because he had notified the Secretary or his authorized Q. 22 "Did you hear the section foreman tell you to get back on your shuttle car and haul coal? A. "He told me to haul, but I said I wouldn't haul in that dust-it was too dusty." representative of any alleged violation or danger, but in fact was discharged for another reason, i.e., that he refused to work. The strict interpretation of the term "Secretary" as defined in section 3 (a) of the Act is urged. Phillips argues that his complaint to a member of the mine safety committee or to the union. safety coordinator of an alleged safety violation is equivalent to a complaint to the Secretary under section 110(b)(1)(A) of the Act and contends that the remedial purposes of the Act require that section 110(b) (1) (A) be given a broad and liberal interpretation. In sum, his case is that he was discriminatorily discharged in violation of section 110 of the Act for having made a report to a mine safety committeeman and that the Judge's decision and findings of fact are supported by substantial evidence. The points argued by BCOA as amicus curiae are: first, that Phillips made no report to the Secretary or his authorized representative and that the Judge erred by interpreting section 110(b) (1) (A) to mean that an employee's complaint on a safety matter to a member of the local union safety committee is equivalent to making a safety complaint to the Secretary or his authorized representative: and second, that the Judge erred in refusing to find the umpire's ruling controlling where, in an arbitration. proceeding instigated by Phillips, his discharge was found to be justified. Issues Presented on Appeal I Did Phillips prove by a preponderance of the evidence that he was discharged for the reason that he had notified the Secretary or his authorized representative of any alleged violation or danger so as to bring his discharge under the protective provisions of section 110(b) (1) (A) of the Act? II Is a determination made by an umpire pursuant to a collective bargaining agreement on the matter of a miner's discharge binding upon an Administrative Law Judge or this Board in a proceeding brought under section 110(b) of the Act? I It is undisputed that Franklin Phillips was discharged by Kentucky Carbon on April 28, 1971. The Administrative Law Judge made the following Findings of Fact with respect to the reason for the discharge: 33. I find from the evidence as a whole that the foreman's discharge of the Ap plicant was arbitrary and discriminatory against the Applicant because of his activities in complaining to the foreman and the Mine Safety Committee about safety and health conditions and because of the Applicant's safety activities in assisting other miners in corrective maintenance to prevent exposure to excessive and hazardous coal dust. 34. I find further that the motivating factor in the discharge of the Applicant was an intent to penalize him for such |